Citation Nr: 0624906
Decision Date: 08/14/06 Archive Date: 08/24/06
DOCKET NO. 05-17 358 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to an initial rating higher than 10 percent for
bilateral tinnitus.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Jason A. Lyons, Associate Counsel
INTRODUCTION
The veteran had active military service from January 1968 to
January 1970, and from May 1971 to February 1978.
This case comes to the Board of Veterans' Appeals (Board)
from a March 2005 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Columbia,
South Carolina, which granted service connection for
tinnitus, and an initial 10 percent disability
rating, effective January 9, 1990 -- this effective date of
service connection having been assigned based upon finding
clear and unmistakable error (CUE) in a January 1990 local
hearing officer's decision, which did not then adjudicate a
previous informal claim for compensation for tinnitus.
In his appeal for a higher initial rating, the veteran is
requesting separate 10 percent ratings for each ear. See
Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a
veteran appeals his initial rating, VA must consider whether
he is entitled to a "staged" rating to compensate him for
times since filing his claim when his disability may have
been more severe than at others).
FINDING OF FACT
The veteran has a 10 percent disability rating for his
bilateral tinnitus, which is the maximum rating authorized
under 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260.
CONCLUSION OF LAW
The veteran is not entitled to initial separate 10 percent
disability ratings for his bilateral tinnitus as a matter of
law. 38 U.S.C.A. §1155, 5107 (West 2002); 38 C.F.R. §§ 4.1,
4.10, 4.25, 4.87, DC 6260 (in effect prior to and as of
June 13, 2003); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir.
2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veterans Claims Assistance Act (VCAA), codified at 38
U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126 (West 2002),
was signed into law effective November 9, 2000. Implementing
regulations were created, codified at 38 C.F.R. §§ 3.102,
3.156(a), 3.159 and 3.326 (2005).
VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38
C.F.R. § 3.159(b) must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim. Pelegrini v. Principi, 18 Vet.
App. 112, 120-121 (2004) ("Pelegrini II"). This "fourth
element" of the notice requirement comes from the language
of 38 C.F.R. § 3.159(b)(1).
Furthermore, on March 3, 2006, the United States Court of
Appeals for Veterans Claims (Court/CAVC) issued a decision in
the consolidated appeal of Dingess/Hartman v. Nicholson, 19
Vet. App. 473 (2006), which held that the VCAA notice
requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)
apply to all five elements of a "service connection" claim.
As previously defined by the courts, those five elements are:
(1) veteran status; (2) existence of a disability; (3) a
connection between the veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability. Upon receipt of an application for "service
connection" (including a claim for a higher initial rating
for a just service-connected disability), therefore, VA is
required to review the information and the evidence presented
with the claim and to provide the claimant with notice of
what information and evidence not previously provided, if
any, will assist in substantiating or is necessary to
substantiate the elements of the claim as reasonably
contemplated by the application. This includes notice that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
These provisions regarding the VCAA and its attendant duty to
notify and assist notwithstanding, however, the claim
presently on appeal may be resolved entirely as a matter of
application of the relevant VA law and regulations, rather
than on the basis of the factual circumstances of the case.
The outcome of the veteran's claim is essentially based upon
the interpretation and application of the provisions in the
VA rating schedule for the evaluation of the veteran's
service-connected tinnitus disability, under 38 C.F.R. §
4.87, DC 6260 (as in effect prior to June 13, 2003). See
e.g., Smith v. Gober, 14 Vet. App. 227, 231-32 (2000)
(consideration of the VCAA duty to notify and assist is
unnecessary when claim may be resolved entirely as a matter
of statutory interpretation). Regardless of whether the
evidence establishes the veteran's tinnitus is perceived as
unilateral or bilateral, the disposition of this appeal does
not change. Hence, the VCAA does not apply to this case
because there is no reasonable possibility that any further
assistance would aid the veteran in substantiating this
claim. See Valiao v. Principi, 17 Vet. App. 229, 232 (2003)
("Where the facts averred by a claimant cannot conceivably
result in any disposition of the appeal other than affirmance
of the Board decision, the case should not be remanded for
development that could not possibly change the outcome of the
decision."); Mason v. Principi, 16 Vet. App. 129, 132
(2002). See also VAOPGCPREC 2-2004 (March 9, 2004)
(there is no additional evidence or information that could be
provided to substantiate a claim for separate ratings for
bilateral tinnitus, inasmuch as entitlement to this benefit
is barred under the applicable law and regulations).
Accordingly, the veteran's claim may be adjudicated on its
merits without further development of the record.
As an initial matter, the veteran wants separate compensable
ratings for tinnitus, on the justification that the
applicable rating criteria from prior to June 13, 2003,
provided for two distinct evaluations where there was
bilateral tinnitus. In determining what is
the appropriate version of the rating criteria for
application, it first warrants discussion that prior to 1999,
DC 6260 provided for a 10 percent rating for tinnitus where
it was persistent as a symptom of head injury, concussion, or
acoustic trauma. 38 C.F.R. § 4.87a, DC 6260 (1998). (The
regulation at issue was also previously revised in February
1994, but with no resulting substantive change to the
criteria for the evaluation of tinnitus. See 59 Fed. Reg.
677). In May 1999, DC 6260 was amended effective
June 10, 1999, to provide for a 10 percent rating for
recurrent tinnitus, regardless of etiology. See 64 Fed. Reg.
25,202 (1999). Neither of those regulations explicitly
addressed whether a separate tinnitus rating could be awarded
for each ear.
Effective June 13, 2003, VA revised DC 6260 again, to provide
that only a single 10 percent evaluation is to be
assigned for tinnitus, whether the sound is perceived as
being in one ear, both ears, or in the head. 38 C.F.R. §
4.87, DC 6260, Note 2 (2003). The veteran's representative
contends that because the effective date of the award of
service connection (and initial single 10 percent rating) for
tinnitus on January 9, 1990 preceded the date of the
regulatory revision pertaining to DC 6260, that the Board
must apply the law in effect prior to June 2003, which did
not expressly prohibit the assignment of separate 10 percent
ratings for tinnitus in each ear.
Generally, when a law or regulation is enacted or a new
regulation is issued while a claim is pending, VA must
first determine whether the statute or regulation identifies
the types of claims to which it applies. Where that statute
or regulation is silent, VA must determine whether applying
the new provision to claims that were pending when it took
effect would produce genuinely retroactive effects. If so,
VA ordinarily should not apply the new provision to the
claim. If there are no resulting retroactive effects, VA
ordinarily must apply the new provision -- however, at no
point prior to the effective date of that provision.
See VAOPGCPREC 7-2003 (Nov. 19, 2003). See, too, 38 U.S.C.A.
§ 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000 (Apr. 10,
2000). These principles disfavoring retroactive legislation
or rulemaking are consistent with the decision of the U.
S. Court of Appeals for the Federal Circuit (Federal Circuit)
in Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003),
which expressly overruled the Court's holding in
Karnas v. Derwinski, 1 Vet. App. 308 (1991) to the extent
that Karnas had permitted the retroactive application of a
statute or regulation, that did not expressly provide for
such application. The previous version of a statute or
regulation, if more favorable, may still be applied
prospectively without any such limitations as to the
effective date of issuance of the revised criteria.
In this case, the change to DC 6260 effective in June 2003
did not provide for retroactive application. See Schedule
for Rating Disabilities: Evaluation of Tinnitus, 68 Fed. Reg.
25,822 (May 14, 2003). Thus, for the period since the
June 2003 revision in the regulation expressly prohibiting
the assignment of separate ratings for each ear, the
veteran's claim must be denied based on the application of
the revised rating criteria.
There remains for consideration, however, whether the veteran
is at least entitled to application of the prior version of
this regulation for the months of eligibility preceding the
June 2003 amendment. Inasmuch as the veteran's claim is for
a higher initial rating, per the Fenderson decision, the
entire time period from the January 9, 1990 effective date of
service connection up until the June 2003 regulatory change
should be reviewed. Moreover, the original rating criteria
effective prior to June 13, 2003 under the old DC 6260 also
may be applied prospectively in the adjudication of his claim
subsequent to June 2003, if warranting a
more favorable result. Unfortunately, though, his claim must
be denied even when considering the former version of DC
6260.
In proceeding with an analysis of whether the rating criteria
from prior to June 13, 2003 provides for the
assignment of separate compensable ratings for bilateral
tinnitus under the appropriate construction of the provisions
of the VA rating schedule -- and including for the
time period even following the June 2003 regulatory
revision, it should be noted at the outset there have been
several recent developments in the law that warrant
preliminary discussion.
In April 2005, the Court issued a decision in Smith v.
Nicholson, 19 Vet. App. 63 (2005), which reversed a decision
of the Board that had concluded that no more than a single 10
percent disability evaluation could be provided for tinnitus,
whether perceived as bilateral or unilateral, under prior
regulations. VA subsequently appealed the Court's decision
in Smith to the Federal Circuit. To avoid burdens on the
adjudication system, delays in the adjudication of other
claims, and unnecessary expenditure of resources based on
court precedent that may ultimately be overturned on appeal,
the Secretary imposed a temporary stay at the Board on the
adjudication of tinnitus claims affected by the Smith
decision during the time period that the appeal to the
Federal Circuit was pending. The specific claims affected by
the stay included: (1) all claims in which a claim for
compensation for tinnitus was filed prior to June 13, 2003,
and a disability rating for tinnitus of greater than
10 percent is sought; and (2) all claims in which a claim for
service connection for tinnitus filed prior to June 10, 1999,
was denied on the basis that the veterans' tinnitus was not
"persistent" for purposes of 38 C.F.R. § 4.87, DC 6260.
Since this case at hand involves the first situation
described above, adjudication of the veteran's claim at the
Board was therefore deferred.
More recently, however, the Federal Circuit reversed the
Court's decision in Smith, and affirmed VA's long-standing
interpretation of Diagnostic Code 6260 as authorizing only a
single 10-percent rating for tinnitus, whether perceived as
unilateral or bilateral. Smith v. Nicholson, 451 F.3d 1344
(Fed. Cir. 2006). Citing Supreme Court precedent, the
Federal Circuit explained that an agency's interpretation of
its own regulations was entitled to substantial deference by
the courts as long as that interpretation was not plainly
erroneous or inconsistent with the regulations. Id, at 1349-
50. Finding that there was a lack of evidence in the record
suggesting that VA's interpretation of Diagnostic Code 6260
was plainly erroneous or inconsistent with the regulations,
the Federal Circuit concluded that the Court erred in not
deferring to VA's interpretation.
As a consequence of that holding, on July 10, 2006, the
Secretary rescinded the stay that had been imposed on all
claims affected by Smith and directed the Board to resume
adjudication of the previously stayed claims consistent with
VA's longstanding interpretation that a single 10-percent
disability rating is the maximum rating available under
Diagnostic Code 6260, regardless of whether the tinnitus is
perceived as unilateral or bilateral.
Presently, in deciding the veteran's claim on the merits,
review of the legal history as to the provisions for
disability compensation for service-connected tinnitus should
consist of, initially, the precedential opinion in VAOPGCPREC
2-2003 set forth in May 2003 that specifically addressed
the issue of separate compensable ratings for bilateral
tinnitus. The General Counsel held that DC 6260, as in
effect prior to June 2003, authorized a single 10 percent
disability rating for tinnitus, regardless of whether the
tinnitus was perceived as unilateral, bilateral, or in
the head. Separate ratings for tinnitus for each ear could
not be assigned under DC 6260 or any other diagnostic
code. See VAOPGCPREC 2-2003 (May 23, 2003).
Precedential opinions of VA's General Counsel are binding on
the Board. 38 U.S.C.A. § 7104(c) (West 2002); Splane v.
West, 216 F.3d 1058 (Fed. Cir. 2000); 38 C.F.R. § 19.5
(2005).
38 C.F.R. § 4.25(b), provides that except as otherwise
provided in the Rating Schedule, the disabilities arising
from a single disease entity, e.g., arthritis, multiple
sclerosis, cerebrovascular accident, etc., are to be rated
separately, as are all other disabling conditions, if any.
See also Esteban v. Brown, 6 Vet. App. 259 (1994); 38 C.F.R.
§ 4.25(b) (2005). The issue is, therefore, whether bilateral
tinnitus constitutes two separate disabilities that are
eligible for separate ratings.
Additionally, the assignment of separate ratings is dependent
on a finding that the disease entity is productive of
distinct and separate symptoms; the evaluation of the same
"disability" or the same "manifestations" under various
diagnoses is not allowed. See 38 C.F.R. § 4.14 (2005); Brady
v. Brown, 4 Vet. App. 203, 206 (1993). In VAOPGCPREC 2-2003,
the General Counsel noted that tinnitus is the perception of
sound in the absence of any external stimulus. Citing The
Merck Manual 665 (17th ed. 1999). VA also discussed the
nature of tinnitus in the proposed amendment to DC 6260:
True (subjective) tinnitus does not
originate in the inner ear, although
damage to the inner ear may be a precursor
of subjective tinnitus. It is theorized
that in true tinnitus the brain creates
phantom sensations to replace missing
inputs from the damaged inner ear, similar
to the brain's creation of phantom pain in
amputated limbs. (Diseases of the Ear,
H. Ludman, and T. Wright, 6th ed., chapter
11; Phantom auditory perception
(tinnitus): mechanisms of generation and
perception, Neuroscience Research
8:221-2, P. Jasterboff, 1990; and
Mechanisms of Tinnitus, Allyn and Bacon,
1995, J. Vernon and A. Moller (Eds)).
True tinnitus, i.e., the perception of
sound in the absence of an external
stimulus, appears to arise from the brain
rather than the ears.
See Schedule for Rating Disabilities: Evaluation of Tinnitus,
67 Fed. Reg. 59,033 (Sept. 19, 2002).
VA further addressed this issue in the Supplemental
Information included in the amendment to DC 6260:
VA's Audiology and Speech Pathology
Service recently wrote a booklet titled
Hearing Impairment, an Independent Study
Course for health care providers. The
section on tinnitus states that the fact
that most tinnitus appears to be coming
from the ear led to a belief that tinnitus
was generated in the inner ear, but this
is not the case. It further states that
damage in the inner ear may be a precursor
for subjective tinnitus, but that
subjective tinnitus is generated within
the central auditory pathways.
See Schedule for Rating Disabilities: Evaluation of Tinnitus,
68 Fed. Reg. 25,822 (May 14, 2003).
The medical treatise evidence documented in the Federal
Register shows, as explained above, that tinnitus is a single
disease entity manifested in a single disability, regardless
of whether it is perceived as being in one ear, both ears, or
in the head. Because tinnitus does not produce separate and
distinct symptoms, the assignment of separate ratings for the
right and the left ear is inappropriate. The application of
38 C.F.R. § 4.25(b) does not, therefore, provide a basis for
assigning separate ratings for bilateral tinnitus.
The determination that section 4.87, DC 6260 does not support
the assignment of separate ratings, is further supported by
the regulatory scheme that forms the basis for evaluating the
severity of a service-connected disability. Disability
ratings are based on the average impairment of earning
capacity resulting from disability. 38 U.S.C.A. § 1155; 38
C.F.R. § 4.1. The basis of disability evaluations is the
ability to function under the ordinary conditions of daily
life, including employment. Regardless of the location of
the disability, evaluations are based upon lack of usefulness
of these body parts or systems. 38 C.F.R. § 4.10.
The VA Rating Schedule does provide for separate ratings for
a single disease entity that has multiple manifestations.
For example, several of the diagnostic codes pertaining to
the feet provide different ratings for unilateral versus
bilateral involvement. Having a disability that affects both
feet, rather than just one foot, results in additional
functional limitations, in terms of the ability to ambulate.
Having tinnitus in both ears, however, does not result in
significantly greater impact on the functioning of the
auditory system, in comparison to having tinnitus in only one
ear.
Pursuant to the phrase in 38 C.F.R. § 4.25(b) "except as
otherwise provided," a single rating for multiple
manifestations of the same disease entity can be applied only
if the diagnostic code so specifies. For instance, some of
the diagnostic codes pertaining to the feet provide that the
same rating applies regardless of unilateral or bilateral
involvement. The Board notes, however, that that lack of
distinction applies to disabilities warranting the minimum 10
percent rating, indicating that the disability is of
insufficient severity to warrant distinct ratings for
unilateral or bilateral involvement.
Nevertheless, in determining the appropriate rating for
bilateral tinnitus we need not look so far as the diagnostic
codes pertaining to the feet; the diagnostic codes pertaining
to the auditory system specify the situations in which
separate ratings are applicable, depending on unilateral or
bilateral manifestations. For example, the rating for
hearing loss is dependent on whether there is hearing loss in
both ears, or only one ear. In addition, DC 6207 provides a
30 percent rating for the complete loss of one auricle, and a
50 percent rating for the complete loss of both auricles.
None of the remaining diagnostic codes pertaining to the
auditory system provide for unilateral versus bilateral
involvement.
In Brown v. Gardner, 513 U.S. 115, 118 (1994), the Supreme
Court held that if a statute is ambiguous, any interpretive
doubt is to be resolved in the veteran's favor. See also
Smith (William) v. Brown, 35 F.3d 1516, 1523 (Fed. Cir. 1994)
(the canons of statutory construction apply to regulations as
well as statutes). The Supreme Court also held in Brown,
however, that "[a]mbiguity is a creature not of definitional
possibilities but of statutory context. . ." Brown, 513
U.S. at 118 (citations omitted). By reading the rating
criteria for DC 6260 in the context of the remaining
provisions of the Rating Schedule, it is clear that a maximum
10 percent rating may be assigned for tinnitus, regardless of
whether it is unilateral or bilateral, and that separate 10
percent ratings cannot be assigned for tinnitus in each ear.
If one section of a statute includes specific language, but
that language is missing from another section of the same
statute, it is generally presumed that such omission is
intentional. See Brown, 513 U.S. at 120. The regulation at
issue specifies that recurrent tinnitus is to be evaluated as
10 percent disabling. 38 C.F.R. § 4.87, DC 6260 (2002). The
diagnostic code does not distinguish between tinnitus that is
perceived in one ear, both ears, or within the head. Other
diagnostic codes pertaining to the auditory system specify
whether the rating is to be assigned based on unilateral or
bilateral involvement (DC 6100 for hearing loss, and DC 6207
for loss of auricle). Because some of the diagnostic codes
pertaining to the auditory system distinguish between
unilateral and bilateral involvement, it is apparent from the
regulation that the omission of that language from DC 6260
was intentional. This interpretation of the diagnostic code
is not in conflict with 38 C.F.R. § 4.25(b), because that
regulation specifies that disabilities arising from the same
disease entity are to be separately rated; tinnitus, whether
unilateral or bilateral, constitutes the same disability.
In sum, based on the provisions of VA's rating schedule (from
when the pre-June 13, 2003 rating criteria
were effective, and which also have not been substantively
revised since then) and the history of regulatory amendments
to the rating criteria at DC 6260 itself -- to include when
reading DC 6260 in the context of the remaining diagnostic
codes pertaining to the auditory system, that diagnostic code
clearly indicates that a 10 percent rating applies to
recurrent tinnitus, whether involvement is unilateral or
bilateral. Moreover, as mentioned, the
decision of the Federal Circuit in Smith v. Nicholson, 451
F.3d 1344 (Fed. Cir. 2006) upheld the
interpretation of the legal authority applicable to the
evaluation of tinnitus on the part of VA, that there is
no conclusive basis upon which separate compensable ratings
for tinnitus can reasonably be awarded, inasmuch as this
represented a legitimate and reasoned interpretation of the
applicable law and regulations.
For these reasons, the Board concludes that the version of DC
6260 in effect prior to June 2003 precludes an evaluation in
excess of a single 10 percent rating for tinnitus. Thus, the
veteran's claim for separate 10 percent ratings for each ear
for service-connected tinnitus must be denied under both the
new and old versions of the regulation. Since the higher
rating sought is not legally permitted on any basis under DC
6260, whether considering the former or revised version, it
also follows that the veteran cannot receive a staged rating,
in accordance with the Fenderson decision. Where, as here,
the disposition of this claim is based on the law, and
not the facts of the case, the claim must be denied based on
a lack of entitlement under the law. See Sabonis v. Brown, 6
Vet. App. 426, 430 (1994).
ORDER
The claim for initial separate 10 percent disability ratings
for bilateral tinnitus is denied.
____________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs